Citation Nr: 18139973 Decision Date: 10/02/18 Archive Date: 10/01/18 DOCKET NO. 16-40 877 DATE: October 2, 2018 ORDER Compensation benefits under 38 U.S.C. § 1151 for dysphagia, claimed as the result of the failure to obtain informed consent prior to uvulopalatopharyngoplasty (UPPP) surgery in January 2008, is denied. FINDING OF FACT The weight of the competent and probative evidence preponderates in favor of finding that a reasonable person in similar circumstances would have proceeded with the UPPP procedure even if informed of the foreseeable risk of dysphagia. CONCLUSION OF LAW The criteria to entitlement to compensation benefits for dysphagia under 38 U.S.C. § 1151 have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.102, 3.159, 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1958 to October 1961, December 1961 to April 1966, and May 1966 to June 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Veteran, in Denver, Colorado, testified before the undersigned at a videoconference hearing. A transcript of that hearing has been associated with the virtual file and reviewed. This case was previously before the Board in December 2017, at which time it was remanded for further development. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to compensation benefits under 38 U.S.C. § 1151 for dysphagia, claimed as the result of the failure to obtain informed consent prior to UPPP surgery in January 2008. The Veteran contends that he is entitled to compensation for dysphagia under 38 U.S.C. § 1151 because he did not provide his informed consent prior to the January 2008 UPPP surgery that caused his dysphagia. Specifically, he states that he was not informed about the potential for developing dysphagia due to the procedure and, had he been so advised, he would have declined to undergo the procedure. Under § 1151, when a veteran suffers a qualifying additional disability or death as the result of hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished by VA, compensation will be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. The additional disability or death must have been directly caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA. 38 C.F.R. § 3.361(c), (d). This standard will be met if VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or if VA furnished treatment, care, or examination without the informed consent of the veteran. 38 C.F.R. § 3.361(d)(1). Alternatively, compensation will be awarded if additional disability or death was directly caused by an event not reasonably foreseeable. 38 C.F.R. § 3.361(d)(2). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient’s surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c). The informed consent process must be appropriately documented in the health record. Signature consent is required for all diagnostic and therapeutic treatments or procedures that require anesthesia. 38 C.F.R. § 17.32(d). Informed consent may be found where “a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk,” which is a question-of-fact to be determined by the Board. McNair v. Shinseki, 25 Vet. App. 98, 107 (2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). After review of the record, the Board finds that the criteria for entitlement to compensation under 38 U.S.C. § 1151 have not been met. The competent evidence of record demonstrates that the Veteran had UPPP surgery at a VA medical center in January 2008 to treat his sleep apnea and developed dysphagia as a result of the procedure. See 10/02/2014, C&P Exam; 01/23/2018, CAPRI. Accordingly, the Board finds that the Veteran developed additional disability as a result of VA treatment. Prior to the UPPP procedure, the Veteran signed an Informed Consent, which states that the Veteran was advised of the probability of success, alternatives (including the choice not to have the procedure), and risks of the procedure. Potential risks listed in the informed consent include velopharyngeal incompetence (nasal air leak with voice change or tendency for fluid/food to come out of the nose when swallowing which could last several weeks and rarely could be permanent); damage to tongue nerves with decreased mobility and decreased sensation; septal perforation; permanent loss of smell; and palate/teeth/cheek numbness which could be permanent. 01/23/2018, CAPRI. In October 2014 a VA examiner opined that it is less likely than not that dysphagia resulted from carelessness, negligence, lack of skill or similar incidence of fault on the part of the attending VA personnel, explaining that dysphagia is a well-known residual condition following a UPPP procedure and that the record is silent for any evidence to support any claim of carelessness, negligence, lack of skill or similar incidence of fault on the part of the attending VA personnel. 10/02/2014, C&P Exam. The examiner also opined that it is less likely than not that failure on the part of VA to timely diagnose and/or properly treat dysphagia allowed the condition to continue to progress. The record shows the Veteran was examined and treated at regular post-operative intervals, with attention to his complaints. There is no evidence of delay in diagnosis or of improper treatment for the Veteran’s condition of intermittent dysphagia. The available medical records do not show that intermittent dysphagia significantly progressed from the post-operative period. 10/02/2014, C&P Exam. The Board notes that the Veteran does not contend that dysphagia was caused by the failure of VA personnel to exercise the degree of care that would be expected of a reasonable health care provider. See 09/25/2017, Hearing Transcript. The October 2014 VA examiner also opined that it is less likely than not that dysphagia resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider because otolaryngologic surgeons operating under the standards of care would consider this possible residual condition as a risk of the UPPP procedure. In this Veteran’s situation, surgery was performed to treat severe obstructive sleep apnea which had been refractory to other modalities. The health risk of prolonged effects from severe obstructive sleep apnea was significantly greater than the risk of developing dysphagia from the operative procedure. The evidence-based potential benefits of the UPPP surgery outweighed the risk of possible post-surgical dysphagia. 10/02/2014, C&P Exam. The Board finds that opinions of the October 2014 VA examiner to be competent, credible, and highly probative, as they are supported by review of the relevant medical records and medical literature, medical expertise, and adequate rationales. In September 2017, the Veteran testified that he was not told about the potential to develop dysphagia as a result of the UPPP procedure and had he been told of the risk, he would have elected not to proceed with the UPPP surgery. 09/25/2017, Hearing Transcript. In light of the foregoing, the Board finds that the weight of the competent and probative evidence is against finding that dysphagia was caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA, to include due to the lack of informed consent by the Veteran. The Board acknowledges that the informed consent document signed by the Veteran did not state that dysphagia is a risk of the UPPP surgery, but notes that it did include such risks as velopharyngeal incompetence (nasal air leak with voice change or tendency for fluid/food to come out of the nose when swallowing which could last several weeks and rarely could be permanent); damage to tongue nerves with decreased mobility and decreased sensation; septal perforation; permanent loss of smell; and palate/teeth/cheek numbness which could be permanent. Additionally, the October 2014 VA examiner opined that health risk of prolonged effects from severe obstructive sleep apnea was significantly greater than the risk of developing dysphagia from the operative procedure, noting that surgery was performed to treat severe obstructive sleep apnea which had been refractory to other modalities. In other words, the Board finds that a reasonable person in similar circumstances would have proceeded with the UPPP procedure even if informed of the foreseeable risk of dysphagia. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel